The Observatory for the Protection of Human Rights Defenders, a joint programme of the World Organisation Against Torture (OMCT) and the International Federation for Human Rights (FIDH), has received new information and requests your urgent intervention in the following situation in Swaziland.

New information:

The Observatory has been informed about the court ruling that sentenced Mr. Thulani Rudolf Maseko, a prominent human rights lawyer, senior member of Lawyers for Human Rights Swaziland and the Southern Africa Human Rights Defenders Network, as well as Mr. Bheki Makhubu, a columnist and Editor-in-Chief of The Nation, considered as the sole independent newspaper of the country, to two years of prison without benefit of bail.

According to the information received, on July 25, 2014, Judge Mpendulo Simelane sentenced Messrs. Bheki Makhubu and Thulani Maseko to two years of prison without benefit of bail. He also fined The Nation and independent publishers to SZL 100,000 (approximately EUR 7,080) payable within one month. This followed the writing and publication in The Nation of articles critical of the Swazi judiciary and in particular of Chief Justice Ramodibedi (see background information).

The Observatory notes that conviction for “contempt of court” ordinarily carries a 30-day sentence or a fine of 2,200 Euros. The judge added that the sentence should be such that “it serves as a deterrent to others, Mr. Maseko being a disgrace to the legal profession”.

The Observatory recalls that the two men have been arbitrarily detained since April 9, 2014 and denied bail since then.

The Observatory is concerned by Messrs. Bheki Makhubu and Thulani Maseko’s sentencing, as it only aims at sanctioning their human rights activities, and calls upon the Swazi authorities to release Messrs. Maseko and Makhubu immediately and unconditionally, and to put an end to the continued judicial harassment against them.

Background information:

On March 17 and 18, 2014 respectively, Messrs. Thulani Maseko and Mr. Bheki Makhubu were arrested on the basis of a warrant issued by Chief Justice Michael Ramodibedi, on charges of “scandalising the judiciary” and “contempt of court” following the publication of articles criticising the judicial system.

The charges arise from articles written by Messrs. Thulani Maseko and Bheki Makhubu in February and March 2014 in The Nation, in which they questioned circumstances surrounding the arrest of government vehicle inspector, Bhantshana Vincent Gwebu and criticized the lack of impartiality of the Swazi judicial system [1].

On March 18, 2014, Messrs. Maseko and Makhubu, who were expected to appear in court, were subjected to a private hearing in the Chief Justice Ramodibedi’s chambers, in violation of Section 21 of the Constitution of the Kingdom of Swaziland, which guarantees the right to a fair trial. The accused’s lawyers were not informed that the hearing would take place in the Chief Justice’s chambers and were only present by chance.

On April 1, 2014, Messrs. Thulani Maseko and Bheki Makhubu appeared before the High Court of Mbabane assisted by their lawyers. Their detention was extended for the third time until the next hearing, scheduled for April 8, 2014. The decision to extend the custody of the two human rights defenders was taken by Chief Justice Mpendulo Simelane, who is also the former High Court Registrar mentioned in the articles published in The Nation for which the two defenders are prosecuted. Since he might be summoned to testify in their case, the defence lawyers of Mr. Maseko and Mr. Makhubu have informed him of their intent to file an application to demand his recusal.

On April 4, 2014, the accused, through their lawyers, filed an application at the High Court where they were seeking a declaratory order on the grounds that the warrant of arrest issued by the Chief Justice was unconstitutional, unlawful and irregular. They argued that the High Court does not have powers to issue same, instead it was a magistrate who issued warrants.

On April 6, High Court Judge Mumcy Dlamini set aside the arrest warrant of Mr. Maseko and Mr. Makhubu, following an application lodged by the two defenders’ lawyers seeking a declaratory order that the March-17 arrest warrant issued against them was unconstitutional, unlawful and irregular. As a consequence, Mr. Maseko and Mr. Makhubu were released on the same day.

However, on April 7, Justice Michael Ramodibedi, along with the Office of the Director of Public Prosecutions, the Attorney’s General Office and the Swaziland Government, appealed against the decision of Justice Dlamini.

On April 9, 2014, Justice Simelane subsequently issued a ruling stating that the April-7 appeal had automatically suspended the April-6 decision to free the two defenders, and that as a consequence they should be re-arrested. Both were held overnight at the Mbabane police station before being detained in the provisional detention centre of Sidwashini, Mbabane.

On April 11, 2014, a bail application was filed by Messrs. Maseko and Makhubu’s lawyers, which was dismissed by Justice Simelane on May 6, 2014.

On April 14, 2014, oral arguments were presented by Messrs Maseko and Makhubu’s lawyers concerning the application for the recusal of Justice Simelane. Despite the obvious conflict of interests and a number of irregular incidents proving a bias against the two defenders, Justice Simelane himself rejected the application demanding his recusal. During the hearing, relatives and supporters of the two defenders were barred access from the Courtroom. Despite Mr. Maseko and Mr. Makhubu’s attempts to move the hearing to a bigger courtroom, Justice Simelane systematically refused to move the hearing. At the same time, police forces surrounded and searched Mr. Makhubu’s residence.

On April 22, the trial resumed and the defenders’ lawyers asked the Court to present the reasons for the dismissal of recusal application of Justice Simelane, in order to ascertain on which grounds they could appeal this decision. However the Court – presided by Justice Simelane – dismissed the request, leaving no possibility to appeal the April-14 decision.

On the same day, Mr. Makhubu and Mr. Maseko pleaded not guilty for the charges of contempt to court. Justice Simelane insisted upon Mr. Maseko’s pleading for two counts for which he was not indicted, but Mr. Maseko refused.

On July 17, 2014, Messrs. Bheki Makhubu and Thulani Maseko were convicted for “contempt of court” by Swaziland’s High Court. Delivering his judgement, Judge Simelane rejected almost all the evidence submitted by the defence and its witnesses. He also said that the Swaziland Constitution does not grant absolute rights for freedom of expression and deferred his judgement on the defendants’ sentencing to a later date.

Actions requested:

Please write to the authorities in Swaziland, urging them to:

i. Guarantee in all circumstances the physical and psychological integrity of Messrs. Thulani Maseko and Bheki Makhubu, as well as all human rights defenders in Swaziland;

ii. Release Messrs. Thulani Maseko and Bheki Makhubu immediately and unconditionally, since their detention is arbitrary as it only aims at sanctioning their human rights activities;

iii. Put an end to all acts of harassment - including at the judicial level - against Messrs. Thulani Maseko and Bheki Makhubu, and more generally against all human rights defenders in Swaziland to ensure that in all circumstances they carry out their activities without any hindrances;

iv. Conform with the provisions of the UN Declaration on Human Rights Defenders, adopted by the General Assembly of the United Nations on December 9, 1998, especially: Article 1, which states that “everyone has the right, individually and in association with others, to promote and to strive for the protection and realisation of human rights and fundamental freedoms at the national and international levels” Article 9.3.c which states that “Everyone has the right, individually and in association with others, to offer and provide professionally qualified legal assistance or other relevant advice and assistance in defending human rights and fundamental freedoms” Article 12.2, which provides that “"the State shall take all necessary measures to ensure the protection by the competent authorities of everyone, individually and in association with others, against any violence, threats, retaliation, de facto or de jure adverse discrimination, pressure or any other arbitrary action as a consequence of his or her legitimate exercise of the rights referred to in the present Declaration”;

v. Comply with the Declaration of Principles of Freedom of Expression in Africa, adopted by the African Commission on Human and People’s Rights on October, 23, 2002, in particular: Article II, which provides that ”no one shall be subject to arbitrary interference with his or her freedom of expression” Article IX, which states that “attacks such as (…) intimidation of and threats to media practitioners and other exercising their right to freedom of expression (…) undermines independent journalism, freedom of expression and the free flow of information to the public. States are under an obligation to take effective measures to prevent such attacks and, when they do occur, to investigate them, to punish perpetrators and to ensure that victims have access to effective remedies”.

vi. Respect the Constitution of the Kingdom of Swaziland adopted in 2005, notably Article 24 which protects freedom of expression and opinion, including freedom of press and other media, defined as “freedom to hold opinions interference; freedom to receive ideas and information without interference; freedom to communicate ideas and information without interference; and freedom from interference with the correspondence of that person”.

vii. More generally, ensure in all circumstances the respect for human rights and fundamental freedoms in accordance with in accordance with the Universal Declaration of Human Rights and with international human rights instruments ratified by Swaziland.

Addresses:

· King of Swaziland, Head of State and Chief of Arm forces, MSWATI III, Royal Palace, Mbabane, Swaziland. Email: hello@kingofswaziland.com